Alhaji Wahab Irawo & Anor V. Adebayo Adedokun & Anor (2004)
LawGlobal-Hub Lead Judgment Report
PIUS OLAYIWOLA ADEREMI, J.C.A.
This appeal is against the judgment delivered in suit No. LD/1348/85 on the 3rd of March, 1995 by the High Court of Lagos holden at Lagos.
The appellants who were the plaintiffs in the court below had through their writ of summons claimed against the defendant in that court (then known as Madam A. Ejide) the following reliefs:-
(1) A declaration that the plaintiffs are entitled to right of occupancy to all that piece or parcel of land situated, lying and being at Nos. 10 and 11, Owokoniran Street, Idi-Araba, Surulere, Lagos State.
(2) An order for the rectification of the Registrar (sic) (in respect of the Land Certificate Nos. MO2790 in plaintiffs’ favour as the registered proprietor of the fee simple estate of the land in dispute.
(3) N500,000 damages for trespass committed by the defendant, her servants and agents on the said land
(4) A perpetual injunction restraining the defendant, her servants and her agent or otherwise from entering or doing anything on the said land in dispute.
Pleadings, in terms of statement of claim with the leave of court, amended statement of defence and amended reply to the amended statement of defence. I pause to say that whilst this appeal was pending, the original defendant (Madam Adepate Ejide) died. The present respondents (Adebayo Adedekun and Mrs. Iyabo Oyedele) were with the leave of court substituted for her. Both sides called evidence, both oral and documentary, in support of the averments in their respective pleadings. At the end of the trial and the addresses of counsel on both sides, the learned trial Judge in a reserved judgment delivered on the 3rd of March, 1995, dismissed the claims of the plaintiffs in their entirety.
Dissatisfied with the decision, the plaintiffs/appellants entered a notice of appeal against it. That notice of appeal dated 16th March, 1995 and filed on 17th March, 1995 carries only one ground of appeal – The omnibus ground. With the leave of this court, four additional grounds of appeal were filed. I say there are only four additional grounds of appeal although on the body of the process filed on 17th November, 1999, there appear five additional grounds. The fifth additional ground of appeal is a repetition of the only ground stated on the notice of appeal filed on 17th November, 1999.
Three issues were identified by the appellants for determination by this court. As set out in their brief of argument filed on the 23rd of November, 1999, they are in the following terms:
(1) Whether the preponderance of evidence is not in favour of the plaintiffs as to entitle them to judgment for declaration?.
(2) Whether the plaintiffs are not entitled to damages for trespass and their unchallenged evidence of possession?.
(3) Whether refusal of rectification on grounds of insufficiency of evidence and non-joinder of the Registrar of title is proper?.
For their part, the respondent raised only one issue for determination. As reflected in their brief of argument, it is as follows:
“Whether or not the appellants established their claim in declaration of title before the leave of court?.”
When this appeal came before us on the 11th of November, 2003 for argument, Chief Omoyinmi, learned counsel for the appellants adopted and relied on the brief of his clients filed on 23rd November, 1999 and the reply brief filed on 18th October, 2001; he urged that the appeal be allowed. Mr. Joseph, SAN adopted and relied on his clients’ brief filed on 3rd October, 2001; and while urging us to dismiss the appeal he referred us to an additional authority which is the decision in Lebile v. Registered Trustees of C & S (2003) 2 NWLR (Pt. 804) 399 in further support of the arguments canvassed in his clients’ brief.
The case of the plaintiffs/appellants’ as could be gleaned briefly from their pleadings is thus: the plaintiffs’ hold themselves out as head and principal members of Ojomo-Eyisha family of Lagos State and thus, they have brought this action in a representative capacity; the land in dispute has always been an integral part of Ojomo-Eyisha family land from time immemorial and that they have always exercised right of ownership and possession on the larger parcel of family land which includes the land in dispute from time immemorial – from the time of their progenitors.
They further avered that though not their tenants, the defendant (then Madam Adepate Ejide) entered the land in dispute without their consent despite the protests and warnings which include litigations, court litigation between Ojomo-Eyisha family and Oloto chieftaincy family over a large parcel of the land ended in favour of the plaintiffs family as the Oloto chieftaincy family withdrew their claim.
As between Ojomo-Eyisha family and Tinubu family over the said large parcel of land which includes the land in dispute, the litigation that ensued ended in favour of Ojomo-Eyisha family. It was their clear averment that the root of title of the defendant was from the Tinubu family. While conceding that certain portion of land was acquired for the Lagos University Teaching Hospital, they strongly contended that the land in dispute does not form part of the land so acquired for the hospital. The defendant, it was again contended, had notice and knowledge of all the litigations. The immediate predecessor-in-title knew of all the court actions which went in favour of the Ojomo-Eyisha family over the larger parcel of land before purporting to effect sale of the land in dispute to the defendant. They finally averred that neither the defendant nor her predecessor-in-title nor even the Registrar of titles in Lagos State notified them (plaintiffs) before issuing land certificate to the defendant in respect of the land in dispute.
The case of the defendants/respondents as shown through their pleadings briefly is that she started and completed substantial portion of the buildings on the land without any protests or warnings from the plaintiffs/appellants. She claimed that they were not aware of any court proceedings and according to them, those proceedings did not relate to the land in dispute. The ancestor of the present respondent now deceased (Madam Adepate Ejide) claimed that she became the owner of the land in dispute by virtue of a deed of conveyance dated 7th May, 1962 executed in her favour by one Oladipo Alade who himself had become the owner of the said land by virtue of a Deed of Conveyance dated 11th of September, 1959. The defendant and her predecessor-in-title were in the pleadings said to have enjoyed continuous and uninterrupted possession of the said parcel of land. The defence finally relied on equitable defences of acquiescence, laches, long possession and the legal defence of Limitation Decree, 1976.
In their reply to the defence, the plaintiffs/appellants averred that equitable defences relied upon by the defence were not available to them for the reason that she was aware of the litigation and by extension she could not take the advantage of the provision of the Limitation Law.
As I have earlier said, the learned trial Judge sequel to taking the final addresses of counsel on both sides, in a considered judgment delivered on 3rd March, 1995 dismissed the plaintiffs/appellant’s claim in toto. In coming to the conclusion reached, the learned trial Judge reasoned inter alia:
“In the present case, neither the 1st nor 2nd P/W who are in the position to lead evidence on the facts of traditional history in proof of the title to land did so. Nor did the first plaintiff testify as to the issue of sales or leases to palm wine-tappers etc, as contained in their pleadings. No witnesses were called on the issue.
However, there still remained the pleading that they successfully prosecuted and defended court actions in respect of the land. The 2nd PW gave evidence of the action brought (sic) by them against the government for claim of compensation for the Lagos University Teaching Hospital land which they claimed from part of the land in dispute, exhibit J. the proceedings in the said case was tendered but not the Judgment in at (sic) these actions …
Therefore, the proof that compensation was received by the plaintiff on the land in exhibit F as proof of ownership of the land cannot stand. There remains exhibit A tendered by plaintiff in support of a Judgment obtained against the present defendant in the Court of Appeal. Unfortunately, exhibit A did not adjudge plaintiff as the owner of the land in dispute. What it did was to send back the case to the High Court for retrial having set aside the earlier Judgment.
This in my view does not support the claim of ownership by the plaintiff …
Adverting in mind to the evidence adduced by the plaintiff, in proof of their pleadings, the address of the counsel and the legal authorities cited by them, I find the claim for declaration of title by the plaintiff not proved therefore judgment cannot be entered in their favour for declaration of title.
It follows therefore that the claim for trespass must fail for the defendants have two houses on the land and this fact is admitted by both parties. The defendants therefore are in physical possession of the land. The claim for N500,000.00 damages for trespass against the defendant must fail and it is hereby dismissed.
It also follows that the claim for perpetual injunction to restrain defendant from entering the land must fail and it is hereby dismissed. On the claim for certification of the Register of title, I do not share the view of learned counsel for defendant that there is insufficient evidence to prove that no notice was served on the owners of surrounding properties by the Registrar of title before he registered defendants’ title. Plaintiff ought to call one or two such witnesses to support his claim. It is essential that the Registrar of title be made a party to this action. In fact, the Registrar is a necessary party to this action.
The second leg of the claim for rectification therefore fails and it is also dismissed.
On the whole, the plaintiffs’ claim has failed with entirety on all four legs and it is hereby dismissed.”
As I have said, it is against this Judgment that the appellants have lodged an appeal. I have examined the issues identified by both sides for determination by this court. It is my considered view that, issue No.1 on the appellants’ brief is identical with the only issue raised by the respondents. I shall therefore take the two together in my consideration of this appeal. I shall therefore take issues Nos. 2 and 3 on the appellants’ brief seriatim. On issue No.1, the appellants conceded that they placed reliance on traditional history. That evidence adduced in LD/28-31/58: The Chief Federal Land Officer and Ojomo Eyisha family and others, judgment of which was delivered on 14th November, 1966 and certified true copy of same tendered as exhibit J. at the trial of this case.
The defendants/respondents, it was further argued did not plead traditional history and therefore, did not join issue with the plaintiffs/appellants on this point. Reliance was also placed on exhibit A – the judgment of the Federal Court of Appeal in FCA/L/213/77 in W.A. Thompson & Ors. v. Madam Adepate Ejide delivered on 12th December, 1979 as founding issue estopped.
The respondents contended in their brief of argument that none of the witnesses called by the appellants gave traditional history. On exhibit A – the judgment of the Federal Court of Appeal – the respondent argued that the exhibit has no evidential value as it did not adjudge the plaintiffs/appellants as the owners of the land; the trial Judge was right in so holding. Exhibit J. was said not to have any bearing on the case and land; the trial Judge, again was contended to be right in so treating that exhibit as lacking in evidential value. Before I go on to consider the oral testimonies to see whether they accord with what the law regards as traditional evidence, I hasten to react to exhibits J and A.
The defendants/respondents were no parties to exhibits J – that is a fundamental flow; so the decision in that case cannot be relied upon to found estoppel. Also, the plaintiffs/appellants in this case are not stricto senso a party to exhibit J even though the name of Alhaji Wahabi Irawo appears as the 3rd defendant/respondent; he could not be said to be representing Ojo-Eyisha family from the way the names are couched. What more, exhibit A decided nothing substantial other than to remit the case for re-trial in the court below. So both exhibits J and A do not accord with what estoppel connotes as or legal concept see Ibuluya & Ors v. Dikubo & Ors. (1976) 6 SC 97.
From the pleadings of the plaintiffs/appellants, it is clear that their case is founded on ‘traditional history’. I pause to say that in all cases where an individual or a family or even a quarter in a community is seeking a declaration of title to land, the onus is on him to prove his case by credible evidence in line with his pleadings. He will fail in his claim if he fails to discharge that burden- see Kodilinye v. Odu (1935) 2 WACA 336, Udeze v. Chidebe (1990) 1 NWLR (Pt.125) 141, Elufisoye v. Alabetutu (1968) NMLR 298 and Ojah v. Ogboni (1996) 6 NWLR (Pt. 454) 272. The law does not permit a plaintiff to rely on the weakness of his adversary’s case, unless same supports his claim. Then, what is ‘Traditional History’?
The answer to this all-important question is better found in explanation of the term. Traditional history or traditional evidence is by its nature, hearsay evidence. Indeed, it is hearsay upon hearsay in the sense that it recounts the events which had occurred long ago and the history of which has been handed down from one generation to another generation in an unbroken chain reaching the present generation. Such hearsay story or evidence is often beyond living memory. In the words of Lord Cohen in the Privy Counsel decision in The Stool of Abinabina v. Enyimadu 12 WACA 171 at page 172 the Law Lord said:
“Evidence as to rights alleged to have existed beyond the time of living memory.”
Implicit in the above explanation is the fact that more often than not the rights which parties seek to establish by traditional evidence are such as had existed beyond living memory. It is therefore appreciated that witnesses who are called upon to adduce traditional evidence would not give an eye-witness account. This category of witnesses cannot speak from their personal knowledge. They only repeat the story which their ancestors had passed down to them. When it is realized that much of our past in this part of the world is practically unrecorded, then the reason why our legal system permits the admissibility of such evidence is not far fetched.
The treatment of traditional evidence or history has over the years come to be regulated by what I may call the rule in Kojo II v. Bonsie (1957) 1 NMLR 1223. The proposition of law relating to traditional evidence as decided in Kojo II v. Bonsie is that where there is a conflict of traditional history, demeanour by itself, is of little guide to the truth. The best way to test the traditional history is by reference to the facts in recent years as established by evidence and by seeing which of the two competing histories is more probable see Alade v. Awo (1975) 4 SC 215 and Lawson & Anr. v. Ajibulu & Ors. (1997) 6 NWLR (Pt.507) 14.
The rule will apply only where the parties plead traditional histories and led evidence in accordance with their pleadings at the trial. It will certainly not apply where the defendant pleads for instance settlement and led evidence showing grant see Uredi v.Dada (1988) 1WLR (Pt. 69) 237 and Atanda v.Ajani (1989) 3 NWLR (Pt. 111) 511. What are the averments which a party relying on traditional histories or evidence must incorporate into their pleadings?
The Supreme Court in Lebile v. The Registered Trustees of Cherubium and Seraphim Church of Zion of Nigeria, Ugbonla & Ors. (2003) 2 NWLR (Pt.804) 399 per the judgment of Uwaifo, J.S.C. provided the answer at pages 418/419 thus:
“It cannot be too often said that a party who relies on traditional history (which a claim to the finding of a village or town implies) would need to plead the names of his ancestors to narrate a continuous claim of devolution, not allowing there to be any gap or leading to a prima facie collapse of the traditional history. The history must show how the land by a system of devolution eventually came to be owned by the plaintiff.”
In the instant case, I hasten to say that there are no competing versions of traditional evidence. I have had a careful study of the statement of claim, the only paragraph that seems to make a strained averment of facts relating to traditional evidence is paragraph 4 which reads:
“The land in dispute is the portion of a large area of land which from time immemorial belonged to and was possessed by the plaintiff and their predecessors-in-title (their progenitors) who have maintained all rights of ownership and possession over the paid large area of land without interruption.”
This paragraph does not meet the required ingredients of a proper averment of traditional history as stated in the Lebile’s case supra; for example no names of the plaintiffs/appellants were pleaded and no precise history of devolution was pleaded. Paragraph of the same pleading has not helped matters. Even then, what is the evidence proffered by the plaintiffs? The 2nd PW – Alhaji Wahab Amusa Irawo – their 1st plaintiff appellant while testifying said:-
“I am the head of the family today, I know one Yussuf Bade, he is one of the principal members of the family and we both represent the family in this action… I know the land in dispute; it is part of our family land.”
Under cross-examination, he said:
“…We used to lease some of the land to people and we sold outright to other person. The defendant is not one of those to whom we have leased our land. I know the Tinubu family. We are not connected with the family land wise. I recall the land on which LUTH was built. My family was the original owners of the land. I know Ladipo Alade. He is dead, I was at home one day when defendant entered my house with a man and identified him to me as Ladipo Alade who sold her the land. Our family never sold any land to Ladipo Alade…
I am now the head of the family I became the head about 20 years ago. I do not know Alago Asalo. But I know Aboku-Bada Branch of Ojomo Eyisha. It is the same as Fajumuni Branch of the Ojomo-Eyisha branch.”
The above is the crucial portion of the evidence adduced by the plaintiff. It falls far short of what can be termed traditional history. Evidence of action of ownership and possession, given by him, even if it is believable, is an account of recent events which are within living memory and therefore very much inconsistent with averment of immemorability. From a review of the evidence led in the court below, I have no hesitation in coming to the conclusion that the learned trial Judge was right when she held that the plaintiffs/appellants failed to prove their root of title- see Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238 and Akinloye v. Eyiyola (1968) NMLR 92. Issue No. 1 on the appellant’s brief is consequently resolved against them. While I answer the only issue raised by the respondent in the negative.
Having resolved issue No.1 against the appellant, issue No.2 is non se quitur. However, since the law enjoins the court to resolve all issues raised before it; it suffices for me to say that in law, if the pleaded root of title is not established by evidence, as in the instant case, to examine evidence of possession or acts of ownership that ought to have been exercised by the party laying claim to that root of title, will on the part of the court be an exercise in futility. Such acts of possession or acts of ownership as might have been exercised by the party asserting the root of title will be there illusory.
The traditional history which is the foundation, having failed any other consequential acts or claims has no leg to stand. For it is only after a party’s root of title as pleaded has been first established to the satisfaction of the court that any consequential acts following therefrom can be looked at with a view to seeing whether they avail the party claiming; see Idundun v. Okumagba (1976) 9-10 SC 227, Are v. Ipaye (1990) 2 NWLR (Pt.132) 298 and Balogun v. Akanji (1988) 1 NWLR (Pt.70) 301. Issue No.2 is thus resolved against the appellants.
The 3rd issue queries the refusal of the trial Judge in refusing to order rectification of the deed of conveyance held by the defendant/respondent. In so refusing to accede to the request for rectification, the learned trial Judge said inter alia:
“On the claim for rectification of the register of title, I do share the view of the learned counsel for the defendant, there is insufficient evidence to prove that no notice was served on the owners of the surrounding properties by the Registrar of titles before he registered defendants’ title.”
Rectification is a sort of equitable relief. It may be given in appropriate cases where, for example, a successful litigant in a land matter had prayed for it so that his victory against a defendant who had obtained a deed of conveyance from another person other than the successful plaintiff might not be rendered nugatory. As I have said, it will only be made in an appropriate case. Indeed, there is jurisdiction in the courts to rectify any instrument such as a conveyance where it established that there was a crucial mistake or its existence or coming into being is fraught with some illegality, its nuisance value will be detrimental to the interest of a successful party. To justify the court in ordering rectification of an instrument, the evidence must be clear and unambiguous that the person seeking it is in the eye of the law, the legal owner of the property the deed of conveyance of which is purportedly standing in the name of the party adjudged not to be the owner or that he is a trespasser. See Bassil & Anr. v. Fajebe &Anr. (2001) 11 NWLR (Pt.725) 592.
From what I have been saying, no case for rectification has been made out. It will be against all canons of equitable principles to order rectification of the deed standing in favour of the defendants/respondents in the face of the over whelming and unchallenged evidence that the defendants/respondents have standing on the land in dispute two completed buildings and in the absence of convincing evidence, that the appellants ever challenged the defendants in the course of erecting the buildings and more, in particular, when the plaintiffs/appellants have not been able to prove any title to the said land in dispute. I therefore answer issue No.3 in the affirmative.
In sum, having regard to all I have been saying supra, this appeal is totally devoid of any merit. It must be dismissed and it is accordingly dismissed with cost I assess and adjudge in favour of the respondent at N7,500.00.
Other Citations: (2004)LCN/1522(CA)
